Citation Nr: 1311171
Decision Date: 04/04/13 Archive Date: 04/19/13
DOCKET NO. 10-434 26 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUE
Entitlement to service connection for an acquired adjustment disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
A. Michel, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Coast Guard from February 1982 to January 1986, and from February 1994 to May 2008. He served in the Army from October 1989 to October 1993.
This matter is before the Board of Veterans' Appeals (the Board) on appeal of a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin which, in part, denied the Veteran's service-connection claim for an acquired adjustment disorder.
The Board originally decided this claim in a May 2010 decision. For the following reasons, as discussed below, the Board vacates that decision, and the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
ORDER TO VACATE
The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012).
Historically, the Veteran was granted service connection for the purpose of establishing eligibility to treatment for an adjustment disorder in an October 2009 rating decision.
The Board initially decided the Veteran's service connection claim in May 2010. The Veteran had submitted a signed statement, received by the RO in December 2009, indicating that he wished to withdraw the claim for service connection for adjustment disorder as he was satisfied with the rating decision establishing eligibility to treatment. Therefore, the Board dismissed the appeal.
However, in August 2010 the Veteran submitted correspondence that stated he was seeking treatment for his adjustment disorder, not a disability rating for it, and that the Board was in error when it decided otherwise.
Subsequently, the Board sought clarification as to whether or not the Veteran desired to continue a claim for service connection.
The Veteran's representative submitted a written brief presentation in March 2013 that stated the Veteran had been granted service connection for the purposes of treatment only in an October 2009 rating decision but that this grant had not been honored by the Veterans Health Administration (VHA); therefore, the Veteran wished to continue his appeal.
Therefore, the Board finds that the Veteran was denied due process of law, and the May 2010 Board decision is vacated.
REMAND
The Veteran was scheduled for a VA examination for adjustment disorder in October 2008. Review of the claims files shows that the Veteran failed to appear for the scheduled examination.
The Veteran submitted a statement (notice of disagreement) in December 2008 that he could not attend the scheduled examination due to finances. That is, he could not attend the examination because he had to work.
In the March 2013 written brief presentation, the Veteran's representative stated that the Veteran had problems getting time off of for VA examinations from his employer; a weekend time may be feasible.
(I hope this is what you were hoping to get from us...)
Karen - putting a peanut shell in Mike's water for added protein. Other than that, being a saint after driving nearly non-stop for 2 days.
Katie - tagging another van with a Bruin's sign (the van said something about Canadians, aye) while continuing her valiant pursuit of a picture of roadkill... to the point of sacrificing her body for the photo. Quote at around 3 a.m.- "Wake me up if you see a girl scout selling cookies on the side of the road."
Paul - nearly knocking the bottle of Ibuprofen out of my hand when hearing of the bet with the other van to consume fewer pills (or was that more pills)?
Mike (tall Mike) - taking "reach the beach" to epic levels by actually wading into the ocean (yeah, not warm) up to around his shins.
Deirdre - In an endless plot to avoid meeting Christian, she effectively diverted our attention with promises of more van snacks, massages, and ponies. Quote - "Wouldn't it be easier to reach the beach on a pony?"
Mike (not from Infinity) - having an epic weekend himself filled with said van snacks (namely Nerds and Sun Chips) and a mountain of free beer tokens from an awesome friend/stranger to the rest of us.
Me - experiencing stomach cramping after the last leg, holding aforementioned beer token to the sky, praying for the beer gods to relieve my pain so that I could partake in said beverage. Quote - "I think the pink Nerds are fighting the purple ones."
(One story is not real.)
~Riley
(I hope this is what you were hoping to get from us...)
Karen - putting a peanut shell in Mike's water for added protein. Other than that, being a saint after driving nearly non-stop for 2 days.
Katie - tagging another van with a Bruin's sign (the van said something about Canadians, aye) while continuing her valiant pursuit of a picture of roadkill... to the point of sacrificing her body for the photo. Quote at around 3 a.m.- "Wake me up if you see a girl scout selling cookies on the side of the road."
Paul - nearly knocking the bottle of Ibuprofen out of my hand when hearing of the bet with the other van to consume fewer pills (or was that more pills)?
Mike (tall Mike) - taking "reach the beach" to epic levels by actually wading into the ocean (yeah, not warm) up to around his shins.
Deirdre - In an endless plot to avoid meeting Christian, she effectively diverted our attention with promises of more van snacks, massages, and ponies. Quote - "Wouldn't it be easier to reach the beach on a pony?"
Mike (not from Infinity) - having an epic weekend himself filled with said van snacks (namely Nerds and Sun Chips) and a mountain of free beer tokens from an awesome friend/stranger to the rest of us.
Me - experiencing stomach cramping after the last leg, holding aforementioned beer token to the sky, praying for the beer gods to relieve my pain so that I could partake in said beverage. Quote - "I think the pink Nerds are fighting the purple ones."
(One story is not real.)
Based on the foregoing, the Board finds that good cause for failing to attend the scheduled VA examination has been demonstrated, and the Veteran should be given another opportunity to appear.
While the Board is remanding the matter for additional action, the Veteran is advised that VA's duty to assist him in the development of his claim is not a one-way street. If a Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103(West 2002 and Supp. 2012).
Accordingly, this case is REMANDED to the RO or the AMC for the following actions:
1. The RO or the AMC should undertake appropriate development to obtain any outstanding medical records pertaining to post-service treatment or evaluation of the Veteran's adjustment disorder.
2. Then, the Veteran should be afforded an examination by a psychiatrist or psychologist to determine the nature and etiology of the adjustment disorder. The claims folders must be made available to and reviewed by the examiner, and any indicated studies should be performed.
The examination report should include a discussion of the Veteran's documented psychiatric history and should also address the Veteran's subjective account of his symptoms.
Based upon the examination results and the review of the claims folders, the examiner should answer the following question:
With respect to any adjustment disorder currently present, is there a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service?
The supporting rationale for all opinions expressed must also be provided.
3. The RO or the AMC should also undertake any other development it determines to be warranted.
4. Then, the RO or the AMC should readjudicate the Veteran's claim for service connection based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
______________________________________________
MARK GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs